Citation Nr: 9834559
Decision Date: 11/23/98 Archive Date: 12/01/98
DOCKET NO. 94-26 246 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux
Falls, South Dakota
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Jeffrey M. Blankenship, Associate Counsel
INTRODUCTION
The veteran had active service from September 1966 to October
1969.
This matter comes before the Board of Veteransí Appeals
(Board) on appeal from a May 1992 decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls,
South Dakota, which denied the veteranís claim of entitlement
to service connection for low back disability. The Board
upheld the denial of this claim in an August 1996 decision.
The veteran filed a timely appeal to the United States Court
of Appeals for Veterans Claims (Court).
In July 1997, VA filed a motion to vacate the Boardís
decision and to remand this matter for further development.
The Court granted the motion in September 1997, vacating and
remanding the case to the Board. The Board, in May 1998,
referred the veteranís claims file for an independent medical
expertís opinion. This opinion has been obtained and the
case has been returned to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend that the veteran
is entitled to service connection for a low back disability
because his current back disorder is the result of an injury
during service. The veteran maintains that he injured his
back when he fell down a ladder while in the Navy. He claims
that he has continued to have back problems since that time,
and that his current back problems resulted from the injury
in service. The veteran says that he received treatment for
back problems from a chiropractor during the 1970s, but that
the doctorís records are no longer available. It has also
been asserted that a statement from a private physician
establishes a connection between the veteranís current low
back disability and his back injury in service. Further, it
is argued that the VA physician who provided a medical
opinion regarding the veteranís disorder is not as qualified
as the private physician who also expressed an opinion
concerning his disorder because the VA doctor was not an
orthopedic specialist.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that, with resolution of reasonable
doubt in the veteranís favor, service connection for a low
back disability is warranted.
FINDING OF FACT
Resolving reasonable doubt in the veteranís favor, his low
back disability is related to his reported back injury
sustained in service.
CONCLUSION OF LAW
The veteranís low back disability was incurred in service.
38 U.S.C.A. ßß 1110, 5107 (West 1991); 38 C.F.R. ß 3.303
(1998).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
The veteranís service medical records reveal that, at the
time of his enlistment examination in May 1966, no back
problems were noted on a report of medical history. The
spine was normal on clinical examination. A treatment note,
dated May 7, 1969, shows that the veteran was seen for a
complaint of ďpain in lower back again, this time it seems
worse then [sic] it did when I first hurt it from [sic] a
fall from a ladder back in mid APRIL. It was improving each
day until about three days ago & then it started to get alot
[sic] worse then [sic] it was before.Ē It was noted that it
sounded like lumbar sacral strain, but that the veteran would
be sent to a squadron doctor for confirmation and advice. A
notation from a doctor appears below the above note and
stated ďagree with above R/O urinary tract Infection.Ē
No other complaints or findings of low back pain or low back
pathology are contained in the service medical records. The
report of a medical examination, performed at the time of his
separation from service in October 1969, showed that the
veteranís spine was normal.
Private outpatient treatment records dating from May 1960
through March 1990 show that the veteran received treatment
for various complaints at the Rural Medical Clinic. He was
seen in June 1975 for complaints of pain in the back and
subcostal region, which was described as worse with deep
breathing or use. The pain was noted to have begun the
previous night and became progressively worse. The
impression is illegible. The records also contain what is
apparently a note of a conversation in December 1983. It was
noted that the veteran had lifted a snowmobile and hurt his
back the day before. It was reported that, on the day of the
note, the veteran ďcanít get out of bed because of back.Ē
It was indicated that the person writing the note talked at
length with the veteranís wife, who requested a muscle
relaxant, and it was suggested that the veteran come in or
the writer could make a house call, if necessary, because a
diagnosis could not be made without seeing him.
The report of a VA examination performed in March 1992 noted
a history of the veteran injuring his back when he fell down
a ladder during service. It was reported that the veteran
had pain in the lumbar spine, right buttock and sometimes
down the leg intermittently since the time of the fall in
service. The initial assessment was chronic low back pain
syndrome dating from a fall while in service with symptoms
suggestive of a moderate nerve root compression syndrome, a
facet disorder, or a disc problem. X-rays of the lumbar
spine revealed degenerative disc disease at the L2-3, L3-4,
and L4-5 levels; and bilateral spondylolysis L-5 with Grade I
spondylolisthesis of L-5 on S-1. A CT scan of the lumbar
spine showed spondylolysis and spondylolisthesis at L5-S1
with mild posterolateral encroachment on the right side at
that level from associated hypertrophic spurring.
A statement, dated in July 1992, was received from a private
chiropractor, Bert J. Tiesen, D.C., in response to a request
for records of treatment the veteran received during the
1970s for a back disorder. Dr. Tiesen stated that these
records were no longer available.
An August 1992 letter from Bruce E. Johnson, D.C., noted that
the veteran was treated in March 1989 for complaints of
severe low back pain. The letter discussed the veteranís
condition at the time of treatment in 1989. It noted that x-
rays revealed almost total degeneration of the L-5 to S-1
disc with Grade I ďspondyloĒ due to disc degeneration with
exostosis formation into the nerve canal.
An April 1993 letter from Peter K. Rodman, M.D., stated that
Dr. Rodman saw the veteran that day for back problems. The
letter stated that the veteran was asymptomatic prior to a
fall in the service in 1969 that resulted in persistent
problems with his back that became worse over a period of
time. It was noted that the history the veteran gave was
very consistent with having a ďlisthesis,Ē or a
spondylolisthesis, that over time had progressed to his
current state. The doctor said that he felt that from the
veteranís description and from his examination, the injury of
1969 was consistent with the current problem and did not
represent a specific new problem.
Also of record is a medical opinion, dated in November 1993,
from a physician who is the chief of the Physical Medicine
and Rehabilitation Service at a VA medical center and who had
reviewed the veteranís claims folder. The physician stated
that the veteran had a congenital spondylolysis in his spine
and was asymptomatic until he fell off a ladder during
service. It was noted that he was treated conservatively and
was apparently asymptomatic at the time of discharge. He was
treated for back pain in 1975 and again in 1983 and at
frequent intervals thereafter. It was also noted that there
was no record of x-rays being taken until March 1989, at
which time spondylolisthesis, Grade I, was shown.
As part of the opinion, the doctor stated that there was no
clear evidence that the spondylolisthesis occurred at the
time of the injury in service. It was noted that
spondylolysis would predispose the veteran to having more
severe injury from a comparable stress to his back. It was
said that the veteranís symptoms did not appear to have been
sufficiently severe as to interfere with his ability to work
prior to the snowmobile lifting incident in 1983. The doctor
summarized that the veteran had sustained a back injury from
a fall in service. He was asymptomatic at the time of
discharge. In 1983, he had acute onset of back pain
following a lifting incident. He had spondylolysis at L5-S1,
which is a congenital condition that would predispose him to
injury. Recent examinations indicated spondylolisthesis at
L5-S1, which may be progressing. The veteran had no
radicular symptoms prior to 1983. He apparently recovered
fully from the injury sustained in 1969. The doctor stated
that the stress of the 1969 injury may have made him more
vulnerable to further injury, but there was no clear
indication that it was a direct cause of his ongoing symptoms
beginning in 1983.
A second letter from Dr. Rodman, dated in March 1994, stated
he had reviewed the veteranís service medical records and all
other medical evidence of record contained in the VA claims
folder. Based on his review of these records, Dr. Rodman
stated that his opinion of April 1993 remained the same. He
felt that the injury of 1969 was consistent with the
veteranís current problems.
A letter from Mark A. Werning, D.C., dated in May 1994,
stated that Dr. Werning did not have any records from when he
worked with Dr. Bert Tiesen. He left Dr. Tiesenís employment
in the summer of 1979, and he believed Dr. Tiesen left
Freeman in 1980.
In May 1998, the Board referred the veteranís claims file for
an independent medical expertís opinion. A June 1998 letter
was received from a professor of medicine and vice chairman
of the department of orthopaedic surgery at the University of
Missouri-Columbia School of Medicine. The expert stated that
he had reviewed the case materials provided and that it was
judged that the veteran probably had clinically silent
spondylolysis/spondylolisthesis when he entered service and
that because, in this case, there was no history of
repetitive back overload trauma, his lumbosacral problem was
probably congenital in origin rather than an acquired defect.
It was further stated that his back problem probably followed
a natural course of progression which was coincidental to his
active service injury. During active service, the reported
fall from a ladder likely caused a minor flare-up of
symptomatology related, in part, to his pathoanatomy. The
nature and severity of his back problem from a superimposed
and/or underlying disease could not be accurately quantified
in 1969 from the records. There was evidently no record of
x-rays during his service years to confirm spondylolysis or
spondylolisthesis. The 1983 snow mobile lifting incident
evidently flared-up underlying and progressing lumbosacral
pathology. Following a natural history of progression over
the years, his ongoing degenerative joint disease of the
lumbar spine eventually manifested itself in his x-ray of
1989. The expert concluded that the veteranís current back
problem was related, in part, to a pre-existing condition
that was likely exacerbated by a reported fall in 1969, and
that it was judged that his back problem would have
clinically emerged sooner or later, with or without his fall
during his service years.
Analysis
The veteran is seeking service connection for a low back
disability. After reviewing the record, the Board finds that
his claim is plausible; therefore, it is well grounded within
the meaning of 38 U.S.C.A. ß 5107(a). The Board is also
satisfied that all relevant facts have been properly
developed and no further assistance is required to comply
with the duty to assist mandated by 38 U.S.C.A. ß 5107(a).
The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service. 38 U.S.C.A. ß 1110. ďA
determination of service connection requires a finding of the
existence of a current disability and a determination of a
relationship between that disability and an injury or disease
incurred in service.Ē Watson v. Brown, 4 Vet. App. 309, 314
(1994).
The veteranís service medical records show that he was
treated for complaints of low back pain following a fall
during service, but they do not show that he had any residual
problems resulting from the injury at the time that he was
separated from service. In fact, the examination performed
at the time of his separation from service showed that his
spine was normal. However, the veteran contends that he
continued to experience radiating back pain following his
fall accident in service and that he was treated for back
pain by a chiropractor during the 1970s, but the records of
this treatment are no longer available. The Board finds
these statements concerning the incident in service and his
subsequent problems with radiating back pain, to be credible.
A lay person can provide evidence of symptoms. See, Lathan
v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5
Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
Additionally, the available private medical records show
treatment for back pain in 1975 and 1983 and the veteranís
private physician, Dr. Rodman, has stated that he had
reviewed the service medical records and all other medical
evidence of record contained in the claims folder and
concluded that the injury in service was consistent with his
patientís current low back disorder. The November 1993 VA
physicianís opinion noted that the veteran had sustained a
back injury from a fall in service, but that he was
asymptomatic at the time of discharge. The physician opined
that, while the inservice injury may have made the veteran
more vulnerable to further injury, there was no clear
indication that it was a direct cause of his ongoing
symptoms. However, the VA physician did not discuss the
veteranís contentions that he continued having radiating back
pain since the time of his injury in service. Also, the May
1998 opinion from the independent medical expert was to the
effect that the veteran probably had a congenital back
disorder that probably followed a natural course of
progression, that his fall in service likely caused a minor
flare-up, and that the nature of any injury in 1969 could not
be quantified. While the expert concluded that the veteranís
back problem would have clinically emerged sooner or later,
with or without his fall in service, he acknowledged that the
back condition was exacerbated by the inservice injury.
Thus, in light of the opinion of Dr. Rodman specifically
relating the veteranís current low back disability to his
fall in service, and the equivocal nature of both the
November 1993 VA physicianís opinion and the June 1998
independent medical expertís opinion, the Board holds that
the record is in equipoise. Therefore, after resolving
reasonable doubt in the veteranís favor, entitlement to
service connection for a low back disability is granted.
38 U.S.C.A. ßß 1110, 5107; 38 C.F.R. ß 3.303.
ORDER
Service connection for a low back disability is granted.
DEREK R. BROWN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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